A man wants the High Court to dismiss a drink-driving case against him because he claims the State is operating an unlawful policy of post dating fixed penalty notices a day after they are posted.
The State argues the purpose of the post dating was to give motorists like Brian Tuohey (24), who could have dealt with his prosecution by way of a fixed penalty notice rather than go to court, the full 28 days to pay a fine after he received it by post.
The matter arose in the District Court prosecution of Mr Tuohey, Loughcutra, Gort, Co Galway, when the post-dating of the fixed penalty notice emerged after he did not pay the fine and contested the matter in the District Court.
District Judge Patrick Durcan, before finalising the matter, asked the High Court to rule on the issue.
Mr Tuohey was arrested for suspected drink-driving in Barrack Street, Gort, Co Galway, on July 23rd, 2017, after gardai spotted him driving without his lights on at around 3am.
He later gave an alcohol reading in the local garda station of 39 microgrammes per 100 militres of breath.
Fixed penalty notice
As this was at the lower end of the scale, it meant his prosecution could be dealt with by way of a fixed penalty notice whereby he was to pay a €400 fine and be automatically disqualified from driving for six months.
He did not pay and was summoned to court where the penalties on conviction are higher, including a one or two year driving ban depending on whether it is a first offence.
During his District Court hearing, it emerged that the fixed penalty notice was dated the day after it was posted which Mr Tuohey's lawyer argued meant it was invalid. The DPP argued it was valid.
Judge Durcan decided to refer the matter to the High Court to determine whether the prosecution should be dismissed and whether dating the notice the day after it was actually posted complied with the 2010 Road Traffic Act.
The High Court was also asked to address how post dating impacts on the right of an accused to a fair trial and whether any prejudice arose.
On Friday, David Staunton BL, for the DPP, argued the post dating by one day was to ensure a person was given the maximum 28 days to pay the fine and facilitate a person in avoiding having to go to court. There was no breach of statutory procedure and was done to afford an accused as much fairness as possible.
Colman Fitzgerald SC, for Mr Tuohey, said this was the result of a "settled and deliberate policy" for which there was no provision in law and the case should be dismissed. The only reason this policy became known was as a result of evidence being adduced in the District Court.
The notice was invalid because the document was misleading on its face, he said.
Mr Justice Max Barrett said he would his give decision next week after he was told Judge Durcan is due to retire in early May and the case has to be sent back to him.